Citation Nr: 0926933
Decision Date: 07/20/09 Archive Date: 07/30/09
DOCKET NO. 07-40 042 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Entitlement to financial assistance in the purchase of an
automobile or other conveyance and adaptive equipment.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. M. Macierowski, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1948 to May
1952, September 1952 to September 1955, and December 1955 to
June 1961.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from the Department of Veterans Affairs
(VA) Regional Office in Roanoke, Virginia (RO).
During the veteran's February 2009 Board hearing, his
representative raised the issue of whether clear and
unmistakable evidence existed in a December 1973 rating
decision which granted a single, combined evaluation for the
veteran's spine and bilateral hip disorders. Accordingly,
the issue is referred to the RO for the appropriate
development.
This appeal has been advanced on the Board's docket pursuant
to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a) (2)
(West 2002).
FINDING OF FACT
The veteran's service-connected disabilities do not cause
loss or permanent loss of use of one or both feet, loss or
permanent loss of use of one or both hands, permanent
impairment of vision of both eyes to the required specified
degree, or anklyosis of one or both knees, or of one or both
hips.
CONCLUSION OF LAW
The criteria for entitlement to financial assistance for
automotive and/or adaptive equipment are not met. 38
U.S.C.A. §§ 3901, 3902 (West 2002 & Supp. 2008); 38 C.F.R. §
3.808 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
With respect to the veteran's claim for financial assistance
for automotive and/or adaptive equipment, VA has met all
statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326 (2008). A letter dated in October
2006 satisfied the duty to notify provisions. 38 U.S.C.A.
§ 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi,
16 Vet. App. 183, 187 (2002). Additionally, review of the
claims file reveals that the veteran was not notified of
regulations pertinent to the establishment of an effective
date and of the disability rating. See Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006). However, the veteran is
not prejudiced by this lack of notice. His claim is for
entitlement to financial assistance for automotive and/or
adaptive equipment, which involves neither an effective date
nor a disability rating. Id.
The veteran's service treatment records and VA medical
treatment records have been obtained; the veteran has not
identified any pertinent private treatment records.
38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Review of the claims
file reveals that the no requests were made to the Social
Security Administration (SSA) for potential disability
determinations and/or the medical records considered in
making those decisions. However, the veteran has not
indicated that he is in receipt of SSA disability benefits,
and there is no other information of record that suggests
such benefits have been awarded. 38 C.F.R. § 3.159 (c) (2).
A VA spine examination was previously conducted in April
2005, and a fee-based examination was conducted in February
2008. 38 C.F.R. § 3.159(c) (4). There is no indication in
the record that any additional evidence, relevant to the
issue decided herein, is available and not part of the claims
file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004).
As there is no indication that any failure on the part of VA
to provide additional notice or assistance reasonably affects
the outcome of the case, the Board finds that any such
failure is harmless. See Mayfield v. Nicholson, 20 Vet. App.
537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486;
Shinseki v. Sanders/Simmons, 556
U.S. ____ (2009); 129 S. Ct. 1696, 2009 WL 1045952, U.S.,
April 21, 2009 (No. 07-1209).
Additionally, all the evidence in the veteran's claims folder
has been thoroughly reviewed. Although an obligation to
provide sufficient reasons and bases in support of an
appellate decision exists, there is no need to discuss, in
detail, all of the evidence submitted by the veteran or on
his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81
(Fed. Cir. 2000) (the entire record must be reviewed, but
each piece of evidence does not have to be discussed). The
analysis below focuses on the most salient and relevant
evidence and on what this evidence shows, or fails to show,
on the claim. The veteran must not assume that the Board has
overlooked pieces of evidence that are not explicitly
discussed herein. See Timberlake v. Gober, 14 Vet. App. 122
(2000) (the law requires only that reasons for rejecting
evidence favorable to the claimant be addressed).
The veteran claims entitlement to financial assistance for
the purchase of an automobile and/or other adaptive
equipment. Specifically, in his October 2006 statement in
support of his claim, he indicated that he was unable to walk
more than 75 feet without stopping. Clinicians at a VA
medical facility approved a scooter to cover longer
distances, but reported that he was unable to get it into and
out of his current vehicle, and concluded that he needed a
larger car or van to transport the scooter to his various
destinations. Service connection is in effect for ankylosing
spondylitis and disc degeneration of the thoracolumbar spine,
with osteoarthritis of the hips and cervical spine, currently
evaluated as 100 percent disabling; and hemorrhoids,
currently evaluated as noncompensable. See 38 C.F.R. §
4.71a, Diagnostic Code 5003, 5243 (2008); 38 C.F.R. § 4.114,
Diagnostic Code 7336 (2008).
Eligibility for financial assistance in the purchase of an
automobile or other conveyance and of basic entitlement to
necessary adaptive equipment exists where a veteran exhibits
one of the following as the result of service-connected
disorder: (i)
loss or permanent loss of use of one or both feet; (ii) loss
or permanent loss of use of one or both hands; or (iii)
permanent impairment of vision of both eyes with central
visual acuity of 20/200 or less in the better eye with
corrective glasses or central visual acuity of more than
20/200 if there is a field defect of a certain type. 38
U.S.C.A. §§ 3901, 3902; 38 C.F.R. § 3.808(a), (b). For
adaptive equipment eligibility only, service-connected
anklyosis of one or both knees or one or both hips is
sufficient to show entitlement. 38 U.S.C.A. § 3901; 38
C.F.R. § 3.808(b).
Loss of use of a hand or foot is defined as no effective
function remaining other than that which would be equally
well served by an amputation stump at the site of election
below the elbow or knee with use of a suitable prosthetic
appliance. 38 C.F.R. § 3.350 (a) (2). The determination
will be made on the basis of the actual remaining function,
whether the acts of grasping, manipulation, etc., in the case
of the hand, or of balance, propulsion, etc., in the case of
a foot, could be accomplished equally well by an amputation
stump with prosthesis. 38 C.F.R. § 3.350(a) (2). Examples
that constitute loss of use of a foot or hand include
extremely unfavorable anklyosis of the knee, or complete
anklyosis of two major joints of an extremity, shortening of
the lower extremity of 3.5 inches or more, complete paralysis
of the external popliteal (common peroneal) nerve and
consequent foot drop, accompanied by characteristic organic
changes, including trophic and circulatory disturbances and
other concomitants confirmatory of complete paralysis of this
nerve. 38 C.F.R. §§ 3.350 (a) (2) (a), (b), 4.63.
In this case, the evidence does not show that the veteran's
service-connected disorders results in the requisite visual
impairment; the record does not reflect that the veteran has
an eye disorder, or decreased visual acuity that would
satisfy the pertinent criteria. The evidence also does not
show that the veteran has loss of or permanent loss of use of
either of his upper extremities. Indeed, the February 2008
fee-based examination report does not reflect that the
veteran has any upper extremity impairment; physical
examination of the upper extremities at that time was normal,
and the examiner noted that the veteran was able to use his
hands in completing his activities of daily living. 38
C.F.R. § 3.350.
The evidence also does not indicate loss or permanent loss of
use of one or both of the veteran's feet. 38 C.F.R. § 3.350
(a) (2) (a), (b), 4.63. As noted above, the determination as
to whether loss or loss of use of a foot exists is will be
made on the basis of whether the actual remaining function,
e.g. balance, propulsion, etc., in the case of a foot, could
be accomplished equally well by an amputation stump with
prosthesis. 38 C.F.R. § 3.350(a) (2). To that end, a May
2006 VA outpatient treatment record, as well as the April
2005 VA spine and February 2008 fee-based examination
reports, reflects that the veteran is able to drive his
current motor vehicle without any adaptive equipment;
specifically, there is no evidence to show that the veteran
is unable to use both of his feet to operate the vehicle
pedals appropriately. Moreover, as noted by the February
2008 fee-based examiner, the veteran's service-connected
disabilities do not cause loss or permanent loss of use of
both feet, as he ambulates on both feet, albeit limited by
his respiratory condition, and is able to sit, stand, and
walk with use of a cane.
As noted above, loss of use of a foot or hand can also
include unfavorable anklyosis of the knee, complete anklyosis
of 2 major joints of an extremity, shortening of the lower
extremity, or complete paralysis of the external popliteal
nerve. 38 C.F.R. §§ 3.350 (a) (2) (a), (b), 4.63. However,
none of these examples are shown in the record. There is no
evidence of shortening of either lower extremity or of
paralysis of the external popliteal nerve. Moreover,
anklyosis is defined as "immobility and consolidation of a
joint due to disease, injury, surgical procedure." Lewis v.
Derwinski, 3 Vet. App. 259 (1992) (citing SAUNDERS ENCYCLOPEDIA
AND DICTIONARY OF MEDICINE, NURSING, AND ALLIED HEALTH 68 (4th ed.
1987)). However, the February 2008 fee-based examination
report noted that the veteran's bilateral knee range of
motion was good. Finally, although service-connection is in
effect for ankylosing spondylitis of the thoracolumbar spine,
the spine is not an extremity. See 38 C.F.R. §§ 3.350 (a)
(2) (a), (b), 4.63.
With respect to for adaptive equipment eligibility only,
service-connected anklyosis of one or both knees or one or
both hips is sufficient to show entitlement. 38
U.S.C.A. § 3901; 38 C.F.R. § 3.808(b). However, the range of
motion of the hips during the April 2005 VA examination was
to 0 degrees of extension, to 50 degrees of flexion, to 30
degrees of abduction, and to 10 degrees of adduction
bilaterally. Similarly, the February 2008 fee-based
examination report reflects that the range of motion of both
the bilateral knees and the bilateral hips was good, and that
there was no anklyosis in either knee or either hip. As
anklyosis is not shown, the veteran is also not eligible for
adaptive equipment only. See 38 U.S.C.A. § 3901; 38 C.F.R. §
3.808(b).
The veteran has argued, in his October 2006 statement in
support of his claim, as well as at his February 2009 Board
hearing, that he requires automobile and/or adaptive
equipment as a result of his service-connected disabilities
because he requires his scooter to ambulate more than a short
distance and is unable to transport that scooter in his
current motor vehicle. However, the record reflects that the
scooter was provided by the VA medical facility in May 2006
after it was determined that a manual wheelchair was no
longer an appropriate means for transportation; a separate
May 2006 VA outpatient treatment record reflects that the
dypsnea on exertion, secondary to a pulmonary embolism, was
the factor most limiting mobility. A June 2006 VA outpatient
treatment record reflects that the pulmonary embolism may
have resulted from the "prolonged recuperation period"
after an October 2005 esophageal perforation and
esophogetcomy, which also likely caused decreased mobility.
April 2006 and May 2006 VA outpatient treatment records also
reflect that the veteran's wife was no longer able to push
the manual wheelchair, and that the veteran was unable to
propel himself in the wheelchair due to impingement of the
right shoulder and dypsnea on exertion, both of which are
nonservice-connected conditions. Only service-connected
conditions may be considered in determining whether financial
assistance in the purchase of an automobile or other
conveyance and adaptive equipment is warranted. See 38
U.S.C.A. §§ 3901, 3902; 38 C.F.R. § 3.808(a), (b).
Accordingly, because neither the veteran's service-connected
spine and hip disorder nor his service-connected hemorrhoids
cause the requisite visual impairment or the
loss or permanent loss of use of one or both hands or one or
both feet, entitlement to financial assistance in the
purchase of an automobile or other conveyance and/or of basic
entitlement to necessary adaptive equipment is not warranted.
As the preponderance of the evidence is against the veteran's
claim, the benefit of the doubt doctrine is inapplicable, and
the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert
v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Entitlement to automobile and/or adaptive equipment is
denied.
____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs